Another Case Of Prosecutorial Bullying Against A 'Hacker'

from the maybe-it's-time-to-rethink-this-approach? dept

As the tragic death of Aaron Swartz resides fresh in our memories, there has been a renewed interest by the public in the way prosecutors use the threat of more jail time as a carrot (edit: should have said "stick"; thanks comments section!) to secure plea bargains. The way the system is set up allows for an arena in which justice is no longer the objective. Instead, an injustice can be used in some kind of strange "ends justify the means" game that would make Lady Justice weep openly. With the odds firmly stacked against anyone that falls in the crosshairs of a federal prosecutor, this is a horrifyingly unjust method for achieving justice, and it appears to be a method favored for use against so-called hackers and hacktivists.

Now, lest you think that the Swartz case was an isolated event, or in case you thought perhaps there would be some sort of ripple effect as a result of it, you should note that prosecutors in the Barrett Brown case appear to be pursuing similar tactics. For those of you not familiar with Brown, he is the self-proclaimed spokesperson for Anonymous recently arrested for allegedly threatening an FBI agent.

Brown was arrested and taken into custody in September after allegedly threatening an FBI agent. In December 2012, he was indicted by a federal grand jury for trafficking “stolen authentication features,” as well as "access device fraud" and “aggravated identity theft.”

On Wednesday, Brown was hit with one count of “concealment of evidence,” and one count of “corrupting concealing evidence.”

And what did Brown do to "conceal evidence"? Apparently he "hid" his laptop with his mother's dishes. Apparently putting a laptop where the Feds don't obviously look is now "concealing evidence."

I won't sit here and compare Brown and Swartz in terms of character. Not because I know or don't know enough about either of them to do so, but rather because that would miss the point entirely. I'll leave it to others to erect the false justification of character assassination. Instead, I'd rather focus on how prosecutors appeared to think that the original charges, which could lead to 90 years of imprisonment for Brown, were apparently not enough and decided to lump this last charge on top of the others. Brown's former attorney, Jay Leiderman, appears to be similarly flabbergasted.

“I would not have seen a third indictment coming,” Leiderman told Ars. “You would think the 90 years of prison exposure that they had on him was enough. Are we at a point in society where we think that 90 years is no longer enough?”

Leiderman speculated that the new indictment was a legal pressure tactic against Brown.

As Ledierman goes on to say, at some point we departed the realm of prosecuting hacktivists and instead entered the realm of persecuting them. If there are crimes committed, let Brown or whoever else stand trial. If the law is behind the times, or written in a way that is ridiculous (as in the Swartz case), we can change the law. There's nothing wrong with the argument that that's a responsibility that falls on the public via whom we elect to government. All that said, for hacktivist crimes, or even those that Brown is accused of, to result in 90 years of jail time -- and for that to not be good enough for prosecutors -- is an absolute joke. Lumping on yet another, more minor, charge to pressure the accused is a downright travesty.

As the tragic death of Aaron Swartz resides fresh in our memories, there has been a renewed interest by the public in the way prosecutors use the threat of more jail time as a carrot to secure plea bargains.

The threat of jail time would be the stick, not the carrot. The carrot is whatever deal they're getting them to agree to.

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The problem is that the "carrot" is exclusively decided by the prosecutor, the same person applying the "stick". As we saw in the Aaron Swartz case, this may not have anything to do with fairness. What if the carrot here is plea-bargaining to a minimum of 20 years in prison and Brown hasn't agreed yet because he thinks that's extreme? (Even if Brown did everything he's accused of I'd consider that extreme myself.)

The problem is that prosecutors, by deciding both the carrot and the stick, and piling on more and more charges, are becoming judge, jury and executioner. They're deciding who gets punished and for how long. And they seem to have no sense of fairness what-so-ever, so the system is falling apart completely.

Brown's probably guilty of quite a bit of stuff, but if the prosecutor feels the need to pile on charges past 90 years worth of prison time, then the "carrot" he's determined Brown should plead to is probably too extreme. And that's wrong, punishment should be commensurate to the crime, no matter what the crime is.

Re: Carrot vs Stick

Actually it would be the carrot and the stick.
You hang the carrot from the stick, which is attached to the animal you're trying to guide. I wish people would stop saying carrot OR stick, and remember it's carrot AND stick!!!

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By taking it literally I think you're missing the play on words that is "carrot OR stick". While carrot represents the reward, the stick represents punishment in that you whip the animal with the stick to get it to move when frustrated...

By the way, Techdirt has now published over 20,000 words about Swartz since he died. I challenge anyone to find a site that has published even half as much. Nobody milks his death more than Techdirt. Nobody else comes close. Congrats on being the biggest abusers of his death out there!

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Yeah, Techdirt totally shouldn’t explore the lack of compassion and regret from the prosecutor who threatened Swartz with what amounted to a life sentence, the continued bullying of hacktivists by prosecutors looking to mount a head on the wall of the federal government, and the fallout of Swartz’s death vis-á-vis his contributions to the tech world and his views on knowledge and technology, amirite?

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Your continual attempts to shame TD into not discussing this topic clearly shows how desperate you are you shut the discussion down, because the more it's discussed publicly, and the more people figure out what's really going on with the "justice" system, the worse things will be for you and your ilk. So we'll just keep on talking thanks.

Was wondering...

Re: Was wondering...

Here's a quote from the Wired version of the article:

"'I would have thought in the wake of Aaron Swartz that the government might have learned something and might have thought twice about bringing the weight of the entire United States down upon someone when it wasn’t warranted,' says Leiderman."

It occurs to me that the net effect of minimum sentencing is a power grab by the executive branch. Congress has taken away power from judges while effectively perserving it for prosecutors. I think the argument could be made that Congress has encroached on powers reserved for the judical branch.

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Complain of it as you will, but how is it a "power grab" by the executive for the legislative branch to enact minimum sentences? That's the legislature taking power away from judges, not the executive doing it.

Well if they take the plea it counts as a win keeping the prosecutors conviction rate nice and high. They don't give two shits about actual justice because that does not bring home the bacon.

More convictions means a better paying position plain and simple. It's sad that it works that way but it's the truth. It's not how shit was supposed to be as all.. :/
Home of the free as long as you keep your head buried in the sand.

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Actually, part of the problem is that PROSECUTORS tend to ignore the sentencing guidelines and talk a great deal about maximum charges. That's the entire point: that they threaten what would be beyond justice...

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Yeah, I'm sure if a prosecutor publicly and repeatedly threatened you with maximum sentences amounting to decades in prison you wouldn't be worried at all. You'd sleep soundly at night clutching a set of sentencing guidelines...

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Again and again, some commenters seem to totally miss the point.

What difference does a sentencing guideline make when the problem is that you're turning a non-violent act - which resulted in no irreparable harm to anyone - into a felony? The penalties associated with being such a second-class citizen in some regards nearly outweigh being put into prison.

how the hell can anything he did justify a sentence of that length? what the hell is wrong with society today? it has lost ant semblance of sanity! many thanks to the entertainment industries for corrupting what was already a bias legal system into something so much worse! an industrial espionage spy wouldn't get this sort of punishment! i assume the prosecutor will be named and shamed before something drastic happens to someone else?

The Problem...

The basic problem is the "threat" applied to anyone who insist on their day in court. What used to be an incentive (we will give you a reduced sentence if you lessen the paperwork) has turned into a stick - we will hit you with extra charges and more jail time if you insist on your costitutional right to a trial and lose.

Are we now at the point where the only solution is to have the prosecution state their demanded sentence in a pre-trial filing (arraignment?), and cannot go lower in a plea-bargain. And if the judge finds that unreasonable, he tosses the case? Like a civil case, the lowest offer you make is the offer that sticks?

If you are guilty, the only way you aren't concealing evidence is if you confess everything you know about the crime. Even then you probably concealed for whatever time passed between when you commited the crime and confessed everything.

"corrupting concealing evidence"... That must be interfering with someone else when they are in the process of concealing evidence?

Past death

Hey, if copyright can still incentivise creation 70 years after the author's death, why can't we punish someone by putting them in prison and keeping them there until several years after they've died? If the incentives work, so will the punishment.

A big part of the problem is that computer crimes are now treated as more serious than non-computer crimes.

Suppose I walk into a company's computer room, take an axe and completely destroy their servers. I've just cost them thousands, possibly millions of dollars in damages, not to mention data loss, time loss, etc.

I will get a lighter sentence than if I merely hacked into the system and copied some data.

Am I the only person that sees a strong similarity between these judicial practices and the activities of 'copyright troll' lawyers? Both groups use a large group of legal actions in an attempt to get a smaller percentage of those actions to come to a beneficial solution for the prosecuting party. The only difference I can really see is that the copyright trolls get a paycheck, while the prosecutors get headlines to tout in public as "defending the public good"